Hardeman v. Williams

Nov 24, 1910

Versions:

SAYRE, J.

We have heretofore had occasion to consider this case. — Hardeman v. Williams, 150 Ala. 415, 43 South. 726, 10 L. R. A. (N. S.) 653; 157 Ala. 422, 48 South. 108. The complaint which first came here counted upon an assault and battery. When it was here last the complaint had been amended by adding counts A and B. On the last appeal nothing was considered but the propriety of the judgment of the circuit court setting aside a verdict which had been rendered on a second trial. The record proper has remained unchanged since then. The trial court had overruled demurrers to the added counts, and these rulings, along with others shown by the bill of exceptions, are now assigned for error.

Count A claimed damages “for trespass' * * * (done by defendant) upon the following property: A dwelling house in the possession of the plaintiff (describing it), on or about the 14th day of April, 1904, and for taking out of said house the following personal property: One iron bedstead,” etc. On the authority of Henry v. Carlton, 113 Ala. 636, 21 South. 225, it is argued that there is a joinder in this count of trespass to realty with trespass to personalty — two separate and distinct causes of action. In the case relied upon the fifth count of the complaint claimed damag'es “for trespass by the defendants on the following tract of land (describing it), and for assaulting and beating the plaintiff on or about the 15th day of September, 1906.” The court had to say: “Each of the fifth and sixth counts of the complaint count upon a trespass upon land, and for assault and beating the plaintiff, etc. The defendants’ demurrer raises the question as to whether the two claims as averred can be united in the same count. We are of the opinion that a plaintiff may aver a trespass upon land in a count for trespass upon the person, and re*55cover for both, when the averments are such as to show but one transaction. But when the count shows that damages are sought for a trespass upon the land-and for a trespass upon the person, and the pleadings fail to shoAV that they are of the same transaction, the two cannot be united in one count.” Construing the count most strongly against the pleader, it was held that a demurrer taking the point should have been sustained. To distinguish this case from Henry v. Carlton, it will suffice to say that there two distinct wrongs Avere adequately declared on in one count, Avhile here the averment in respect to taking away the personal property, dissociated from the averment of trespass to realty, is wholly insufficient to charge actionable Avrong. The count fails to show that the property carried aivay was the property of plaintiff, or in the plaintiff’s possession, or that the mere carrying aAvay was wrongfully done. So, then, the merit of the count is to be found in its allegation of trespass to the realty, in which respect it was sufficient because it followed the Code form. There was no joinder of distinct and separate causes of action to render the count bad because they Avere not alleged to have arisen out of the same transaction. The allegation in respect to carrying away the household goods, at its best, or worst, can only be taken as the allegation of a fact circumstantial to and in aggravation of the trespass to realty which constitutes the gist of the action. Its office in the count was not questioned except by a demurrer which asserted that it stated a separate and distinct cause of action. This it did not, so that in passing upon the demurrer, it was properly ignored as mere surplussage. The count, in so far as it avers a trespass to realty, not only follows the Code form, but as a whole, follows approved precedent (2 Chit. PL 616), and was not defective as alleged in the demurrer. If the allega*56tion as to taking away the goods ha.d been introduced by use of the customary words “and having so ente'red, did then and there,” the count would have shown one transaction beyond cavil.

Count B claims damages “for a trespass * * * (by defendant) on the following goods and chattels in the possession of the plaintiff: One iron bedstead,” etc. The ground of demurrer now insisted on is that the count failed to allege a wrongful taking. There is a sense of the word “trespass,” which is here made to do service for the more specific terms employed in the Code form for trespass in taking goods, which comprehends not only wrongs done by direct and immediate force, but also wrongs which affect the plaintiff consequentially. Its ordinary signification, however, is that one has used unauthorized force against the person or property of another. Thus in the form for trespass to land the word “trespass” is allowed to stand for just as much as it does in this count. So it seems that, following a long line of decisions in analogous cases, which rest upon the theory that the defendant must be held to know what he has done and how he has done it better than the plaintiff (Leach v. Bush, 57 Ala. 145), when the property offended against and the plaintiff’s property right therein are described in connection, an allegation that the defendant did commit a trespass on plaintiff’s property must be permitted to stand as an adequate description of the wrong counted upon.

Appellant insists that he was entitled under the evidence to the general charge. On the facts as stated by Denson, J., on the first appeal it was held that the defendant was entitled to the general affirmative charge. On the second appeal it was said that the facts then appeared differently. On the facts as they now appear, the question of defendant’s responsibility for an assault and *57battery suffered by plaintiff at the hand of Myers, agent for defendant, was a question for the jury. The principal is responsible for the acts of his agent done within the scope of his employment, and in the accomplishment of objects within the line of his duties, though the agent seek to accomplish the master’s business by improper or unlawful means, or in a way not authorized by the master, unknown to him, or even contrary to his express direction. The legal aspect of such a case is not changed because the agent superadds malice or other personal motive to his wrongful act. There is no question about the authority of Myers to recover the property for the plaintiff or that he went to plaintiff’s house for that purpose. He went, there to malte the writ of seizure, the means adopted to recover the goods, effective by pointing out the property to the constable. The jury were at liberty to infer also that trouble was anticipated and that Myers and Falligant, both agents for the defendant,.went with the constable to guarantee his safety and the execution of the writ no matter what the consequences might be to plaintiff. According to plaintiff’s, version of what occurred, she did interpose verbal objection, and according to the testimony of the constable, who was a witness for the defendant, she attempted to prevent the execution of the writ by physical force. The jury was free to find that defendant’s agents went to the assistance of the constable and joined in the use of force and violence upon her person in order to overcome her opposition to the seizure and removal of the goods. There was no plea of justification in answer to the count which proceeded for an assault and battery. There was a denial only. On the evidence it was for the jury to say whether defendant’s agent did assault and beat plaintiff, and whether in doing so he acted in the *58execution, though improperly or unlawfully, of the authority intrusted to him by his master.

What has been said will serve, also, to show our conclusion that charges 2, 3, 7, and 8 were properly given on plaintiff’s request, and that charges 1 and 2, refused to the defendant, were refused without error. Charge 3, refused to the defendant, was misleading in that the jury might have inferred from it that defendant was not to be held liable for an assault and battery committed by his agent unless the agent was employed for the purpose. The charge was by no means clear, as charges for the instruction of the jury should be. It was capable of a more or less doubtful interpretation which would have put it into accord with the principles of law obtaining in the case, but as so interpreted its substance in all particulars was more than once given to the jury in other instructions requested by the defendant. There was no error in refusing this charge.

The trial court instructed the jury, at plaintiff’s request, as follows: “The court charges the jury if they are reasonably satisfied from the evidence of the truth of the statments contained in count A, then the jury must find a verdict for the plaintiff, unless the defendant has shown to the reasonable satisfaction of the jury, among other things, that all of the property taken, or caused to be taken, by L. E. Myers belonged to Larlie Williams, and not to the plaintiff.” This was error. Count A, had nothing to say of either the ownership or the possession of the personal property therein mentioned as having been taken by the defendant’s agent. The dwelling house, the subject of the alleged trespass to realty, is shown by the count to have been in the possession of the plaintiff, and the personal property is alleged to have been taken out of the house. This averment was by no means specific enough to exclude the *59possession or ownership of the personal property by a person other than the parties to the present suit. In special pleas 4 and 5 defendant averred that one Larlie Williams claimed to own the articles taken, which were at the time of the alleged trespass in her possession in a room occupied by her in the plaintiff’s dwelling house, and justified the entry and taking by his agent under a license contained in a mortgage of the goods executed by Larlie, and under a writ of seizure issued by competent authority in an action of detinue brought by defendant against Larlie for the recovery of the goods, defendant’s agent acting then and there as an aid to the officer executing the writ. The evidence tended to show Larlie’s occupancy of a room in plaintiff’s dwelling house, and in one aspect that, while she owned the iron bedstead, the rest of the articles covered by the mortgage and taken by defendant’s agent belonged to the plaintiff. Larlie’s execution of the mortgage covering all the property was not denied. Construing the charge with reference to the pleading and the evidence, it destroyed the special defenses by reason of the fact that some of the articles were the property of the plaintiff, whereas the defenses — the sufficiency of which in this or any other respect is not here in question — were predicated, not upon Larlie’s ownership, but upon her possession under a claim of ownership. Whether the possession was with plaintiff or Larlie, her daughter, was a question about which the evidence afforded contradictory inferences Avhich were for the determination of the jury. It may be also that, notwithstanding her ownership in fact, plaintiff had estopped herself to deny Larlie’s ownership.

Question is made about two or three other charges given at plaintiff’s request, but it is hardly probable that they will recur in connection with just the plead*60ing and the evidence shown by this record, and we will not'pursue the inquiry further.

We are of 'opinion that the judgment ought to be reversed, and it is so ordered.

Reversed and remanded.'

Dowdell, O. J., and Anderson and Evans, JJ7, concur.